Page 51 - Successor Trustee Handbook

However, depending on the law of the state where the asset is located, if the
value exceeds a certain amount, a full court probate of the Will may need to be
opened in order to transfer the assets into the Trust. This may be particularly true
of real estate. If the Trustor is not deceased, but merely incapacitated, it is
possible that you may transfer title to assets into the Trust utilizing his or her
Durable Power of Attorney for Property. You will need to consult with an attorney
to be sure that the proper power is granted and that the transfers are done
legally in accordance with the terms of the Power of Attorney. When transacting
business on behalf of the Trust, you should sign documents in the same manner as
the holding of title above; in other words, you should sign “as Trustee of the
_______ Trust dated _______.” (Some places may allow you to just use your
name plus the word “Trustee”.) You may require a “Trust Certification” to
properly evidence your authority to sign as Trustee. This document will typically
have attached to it copies of doctor letters (or other documents) evidencing the
Trustor’s incapacity, or if the Trustor is deceased, a death certificate, along with
a copy of the Trust or at least the pertinent sections naming you as Trustee and
listing your Trustee powers. Some third parties will provide you with their own
form of Trust Certification to complete, but in order to expedite your transacting
of business, it is recommended that you have an attorney prepare one for you
that you can copy and reuse numerous times and not worry about completing
properly. Remember, you should not transact business in your own name alone,
without the word “Trustee” behind your name and, preferably, with wording
indicating that you are doing so on behalf of the Trust name.

Sometimes, third parties with whom you are transacting business may request
confirmation of your power to enter a certain type of transaction. Oftentimes,
you can get a letter from an attorney reciting your power under the Trust
document and confirming your authority to act. Sometimes you may require a
court’s approval (or you may want a court’s approval to protect yourself from
liability). Situations where this issue may arise include where you are borrowing
and utilizing Trust assets as security, or where you are entering unusual types of
investing, such as “buying on margin” or “puts and calls” (but watch out - -
“unusual investments” may be too risky and unsuitable for the Trust; see the
Chapter, “Investing Trust Assets”). If you are managing an operating business
that is in the form of a separate legal entity, such as a corporation, limited
liability company, or family limited partnership, you also need to comply with the
legal procedures specific to the entity and should definitely seek the assistance
of an attorney when transacting this kind of business. (Also see the Chapter,
“Investing Trust Assets.”) If you intend to sell or liquidate major Trust assets, the
beneficiaries may need to be notified, and, again, you should seek the advice of
an attorney before doing so and may want to seek court approval.

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